Judgments of note 2021

[2021] NZHC 2337 GF v Minister of Covid-19 Response and Others [PDF, 1.4 MB] (Judgment of Chruchman J, 7 September 2021) APPLICATION FOR LEAVE TO APPEAR AS REPRESENTATIVE IN THE HIGH COURT - proposed representative works as employment advocate without current practising certificate - advocate is legally trained and has relevant qualifications - length and complexity of hearing - advocate is undertaking the work pro bono - case must be heard urgently - application granted - APPLICATION FOR NON-PUBLICATION - public feelings are high on issue of COVID-19 vaccination - applicant's name anonymised on interim basis.

[2021] NZEmpC 138 The 20 District Health Boards v New Zealand Nurses Organisation [PDF, 378 KB] (Judgment of Judge B A Corkill, 23 August 2021) APPLICATION FOR DECLARATIONS – STRIKE – Authority has jurisdiction to make findings about interpretation or construction of the Act and therefore make declarations contained in a determination – whether life preserving services agreements under Code of Good Faith are binding on parties – agreement is not a binding contract but contains obligations that should be followed in good faith – breach of life preserving services agreement is not necessarily a breach of good faith but may be – compliance order may be available in some circumstances – Union did not breach good faith by insisting on only being bound to use best endeavours to comply with agreement – right to strike belongs to individual members and Union cannot require a member not to strike – declarations made.

[2021] NZEmpC 123 20 District Health Boards v New Zealand Nurses Organisation [PDF, 190 KB] (Judgment of Chief Judge Christina Inglis, 6 August 2021) APPLICATION FOR SPECIAL LEAVE TO REMOVE MATTER TO EMPLOYMENT COURT – important questions of law arise other than incidentally – jurisdiction of Authority or Court to make the declarations sought – whether life preserving services agreement is binding and enforceable – Code of Good Faith for Public Health Sector –  application granted.

[2021] NZEmpC 109 Jackson v The Aorere College Board of Trustees [PDF, 182 KB] (Judgment of Chief Judge Christina Inglis, 15 July 2021) APPLICATION FOR SPECIAL LEAVE TO REMOVE MATTER TO COURT – URGENCY – COVID-19 DELAYS – urgency can increase over time – delays in the Authority can be a reason for removal – Authority is ready to investigate the proceedings in this case – application declined.

[2021] NZEmpC 96 Extenday New Zealand Ltd v Mickleson [PDF, 172 KB] (Judgment of Judge J C Holden, 30 June 2021) APPLICATION FOR SEARCH ORDER – prima facie case that respondents are in breach of obligations – application granted.

[2021] NZEmpC 87 New Zealand Post Primary Teachers’ Assoc Inc v Secretary for Education [PDF, 497 KB] (Judgment of the Full Court, 22 June 2021) PAY EQUITY – provision of non-contact time differs between part-time teachers and full-time teachers – whether this amounts to sex discrimination – no clear connection established between non-contact time and remuneration – both full-time teachers and part-time teachers are mostly female – full-time teachers were formerly mostly male but no clear evidence that historic trappings of male domination have been retained – indirect discrimination claims are available under the Equal Pay Act – indirect discrimination not established – claims dismissed.

[2021] NZEmpC 84 A Labour Inspector of the Ministry of Business, Innovation and Employment v Jeet Holdings Ltd [PDF, 555 KB] (Judgment of Judge K G Smith, 9 June 2021) BREACH OF MINIMUM STANDARDS – EMPLOYMENT PREMIUM - multiple companies in breach – one company in breach has ceased to exist – action cannot be continued against non-existent company – companies’ director was personally involved in breach – breaches were serious – declarations of breach made against companies that had employees – pecuniary penalties awarded – compensation orders made to recover loss of employees – banning order made against director.

[2021] NZEmpC 82 Barry v C I Builders Ltd [PDF, 279 KB] (Judgment of Chief Judge Christina Inglis, 2 June 2021) APPLICATION FOR DECLARATION OF EMPLOYMENT STATUS – agreement described applicant as independent contractor – intention is only one factor in determining nature of relationship – company had the right to exercise detailed control over applicant – applicant was integrated into company – applicant did not work for anyone else during course of relationship – applicant was unable to delegate work to others – applicant had no opportunity to make a profit or bear a loss – no ability to sell a business – applicant was an employee – declaration granted.

[2021] NZEmpC 77 Fleming v Attorney-General [PDF, 446 KB] (Judgment of Chief Judge Christina Inglis, 26 May 2021) APPLICATION FOR SECTION 6 DECLARATION - DISABILITY CARE - severely mentally disabled adult could not have employed the applicant in spite of Gazette notice - applicant was engaged by the Minister of Health - caring for severely mentally disabled adult was a responsibility of the Minister of Health under international obligations - applicant's work was undertaken in a dwellinghouse - applicant was a homeworker and therefore an employee of the Minister of Health - part 4A of the New Zealand Public Health and Disability Act 2000 precluded wages while in force - unpaid wages owed starting with repeal of part 4A - penalties not appropriate.

[2021] NZEmpC 69 Head v IRD (Judgment of the full Court, 14 May 2021) SECTION 6 - TRIANGULAR EMPLOYMENT - whether plaintiffs were employed by IRD or labour-hire company - labour-hire arrangements can be legitimate - agreements and documents between the parties were clear that labour-hire company was the employer - intention of the parties was for labour-hire company to be the employer - relationships operated in practice in accordance with agreements and documents - common law tests of limited assistance - no deliberate attempt to bypass employment protections - plaintiffs were employed by labour-hire company.

[2021] NZEmpC 59 Humphrey v Canterbury District Health Board, te Poari Hauora o Waitaha [PDF, 242 KB] (Interlocutory Judgment of Chief Judge Christina Inglis, 30 April 2021) APPLICATION FOR INTERIM REINSTATEMENT - serious question to be tried in relation to permanent reinstatement - difficulties with relationships can potentially be resolved with professional assistance - damages would not be an adequate remedy - application granted.

[2021] NZEmpC 55 Macleod v Wellington City Transport Ltd [PDF, 257 KB] (Reasons for Judgment of Judge B A Corkill, 26 April 2021) REASONS FOR GRANTING INTERIM INJUNCTION – prima facie case made that lockouts were unlawful – lockout arguably sidesteps requirement to initiate MECA bargaining – lockout arguably improperly compelled union to accept a MECA when only SECA bargaining was initiated – proposed collective agreement arguably contains unlawful availability provision – balance of convenience favours granting interim injunction.

[2021] NZEmpC 35 Radford v Chief of New Zealand Defence Force [PDF, 422 KB] (Judgment of the full Court, 24 March 2021) JURISDICTION – place of employment was Washington DC – agreement provided for US law to apply but imported concepts from New Zealand employment law – employee was not part of the Civil Staff  under the Defence Act – US law applies to agreement but with consideration of Employment Relations Act 2000 – Authority has jurisdiction to hear the case – New Zealand is the appropriate forum for the dispute.

[2021] NZEmpC 8 Commissioner of Police v New Zealand Police Assoc Inc [PDF, 464 KB] (Judgment of Judge B A Corkill, 11 February 2021) COLLECTIVE AGREEMENT – INTERPRETATION – whether employees entitled to motor vehicle reimbursement – reimbursement clause applies to all instances of rotation – entitlement applies when appointment to temporary role whether initiated by employee or employer – entitlement also applies for employee assigned to multiple places of work.